B.L.Yadav - (1.) - The present petition under Article 226 of the Constitution of India is directed against the order dated 20 3-90 passed by the Board of Revenue dismissing the second appeal filed by the petitiones, and the order dated 8-7-87 passed by the Additional Commissioner in a suit under Section 229-B of the UP ZA and LR Act filed by Mohan Lal, defendant no. 4 and Jagannath, defendant no 5 against Ram Chandra and others for declaration as bhumidars alleging that Deep Chand, father of Sureshi and Smt. Savitri died in 1975 and Sureshi and Smt. Savitri both were married at the time of his 29-Rep-1991 death, hence they could not inherit, rather the plaintiffs being sons of Tugal, real brother of Deep Chand and sons of Ram Swaroop, the other brother of Deep Chand and Ram Chand the fifth brother inherited the plots of bhumidhar.
(2.) THE suit was contested by Smt. Savitri, respondent no. 14, daughter of Deep Chand that she was unmarried and minor at the time when Deep Chand died. Consequently being unmarried daughter she was inherited the plot from Deep Chand, her father and thereafter executed the sale deed. She executed the sale deed in favour of Ram Swaroop Singh defendant no. 6 and the vendees also executed another sale deed in favour of other defendants, and in any case as Smt Savitri being minor and unmarried was recorded over the plots, hence the vendees were entitled to the provisions of Sections 41 and 43 of the Transter of Property Act THE trial court by order dated 8-4-87 dismissed the suit (Annexure-2) THE plaintiffs preferred an apnea! before the Additional Commissioner which was allowed by judgment dated 8 7- 88. Petitioners second appeal was dismissed by the order dated 20-3 90. Sri K B. L. Gaur, learned counsel for the petitioner urged that the statement of Jagannath. respondent no 5, the son of Tugal. real brother of Mohan Lal, the plaintiff, made a statement in mutation proceedings to the effect that Smt. Savitri was minor and unmarried at the time when Deep Chand died in 1975. A true copy of the statement has been filed as Annexure 2 to the petition. But that statement of Jagannath, real brother of the plaintiff was not considered which was an important piece of evidence The other important documentary evidence Including the rent receipts of 1387 F, irregation slips, order dated 3-10-77 in proceedings under section 145 and the order dated 5-7-77 passed by the Civil Judge, Roorkee etc. were not considered. The findings have been recorded by respondent nos. 1 and 2 in complete disregard of the important documentary and oral evidence on record and consequently those findings are not binding. Reliance was placed of Vishwanath Prasad v. Dwarika Prasad, AIR 1974 SC 117, Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405, and Smt Sonavati v. Sri Ram, AIR 1968 SC 466. Sri S N. Srivastava, on the other hand, urged that all the material evidence on record has been considered and as the statement was made by Jagannath in mutation proceedings, hence that has no probative value and the findings recorded by respondent nos 1 and 2 are findings of facts.
(3.) HAVING heard the learned counsel for the parties the point that falls for determination Is whether the findings recorded by the first appellate court in disregard of material evidence on record including admission of a party would be binding or not ? Suffice it to say that the statement contained in Annexure-2, the statement of Jagannath, even though was made in mutation proceedings, but nevertheless it happens to be an admission of a party to the case and it need not have been put in cross-examination to Jagannath. as he was not examined in the suit giving rise to the present petition. The admission inview of the provisions of Sections 17 and 2' of the Evidence Act are binding on the party making them Even though the same is not the conclusive proof of the matter admitted and even if the person making the statement or admission was not examined, that is immaterial. Their statement need not he put in the cross-examination to the witness. In the present case Jagannath, the maker of the admission was not examined by the plaintiff, hence there was no possibility of that statement being certified to him Further as the- admission was clear, consequently, there was no option but to consider the same. In Bharat Singh v. Smt. Bhagirathi, (supra), it was held that an admission to be binding against the person making it must be clear. Such admissions are substantial evidence admissible in evidence irrespective of the fact whether the party making them was examined or not or in case the parties are examined whether he was confronted with that statement or not.;